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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Dec-30-2013 2:40 pm
Case Number: CGC-13-535864
Filing Date: Dec-30-2013 2:39
Filed by: KEITH TOM
Juke Box: 001 Image: 04325030
ANSWER
L
BENTLY BIOFUELS COMPANY LLC DBA BENTLY BIOFUELS VS. K. DAVID
FISHER et al
001004325030
Instructions:
Please place this sheet on top of the document to be scanned.28
TINGLEY Law Group
ASTORWEYS AT LAW
CURTIS R. TINGLEY (SBN 112322)
KEVIN P. O'BRIEN (SBN 215148)
KEVIN W. ISAACSON (SBN 281067)
TINGLEY LAW GROUP, PC
10 Almaden Boulevard, Suite 430
San Jose, California 95113
Telephone: (408) 283-7000
Facsimile: (408) 283-7010
Attorneys for Defendants
K. DAVID FISHER; 3D OIL & GREASE LLC
San Francines Cavinn Sune
uel 30 2013
CLERK\OF, THE 0
xe PM
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BENTLY BIOFUELS COMPANY LLC
dba BENTLY BIOFUELS COLLECTION
SERVICES, LLC,
Plaintiff,
v.
K. DAVID FISHER; 3D OIL & GREASE LLC,
and DOES 1-25, inclusive,
Defendants.
CASE NO. CGC-13-535864
ANSWER TO COMPLAINT
Complaint Filed: December 3, 2013
BY FAX
Defendants, K. DAVID FISHER and 3D OIL & GREASE LLC (hereinafter collectively
“DEFENDANTS”) deny the allegations of the unverified Complaint (hereinafter
“COMPLAINT”) of Plaintiff, BENTLY BIOFUELS COMPANY LLC dba BENTLY
BIOFUELS COLLECTION SERVICES, LLC (hereinafter “PLAINTIFF”). DEFENDANTS
assert the following affirmative defenses to the COMPLAINT and each cause of action contained
therein:
FIRST AFFIRMATIVE DEFENSE
As a first separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS allege that the COMPLAINT fails to state facts
sufficient to constitute a cause of action against DEFENDANTS.
M1
DS532CS5E6.doc
ANSWER TO COMPLAINT28
TINGLEY Law GRouP
Arronners AT LAW
SECOND AFFIRMATIVE DEFENSE
Asa second separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS allege that, at all times relevant herein, PLAINTIFF,
with full knowledge of all of the facts in any way connected with, or relating to, the matters
alleged against DEFENDANTS, duly ratified, acquiesced in and consented in all respects the
conduct and actions of DEFENDANTS.
THIRD AFFIRMATIVE DEFENSE
As a third separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS allege that PLAINTIFF’s claims, and each of them,
fail for lack of adequate and lawful consideration.
FOURTH AFFIRMATIVE DEFENSE
As a fourth separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS allege that the COMPLAINT, and each and every
alleged cause of action therein, is barred by way of an account stated.
FIFTH AFFIRMATIVE DEFENSE
Asa fifth separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS assert all amounts owed to them by PLAINTIFF as a
set-off against any alleged damages to PLAINTIFF by DEFENDANTS pursuant to this action.
SIXTH AFFIRMATIVE DEFENSE
As a sixth separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS allege that the COMPLAINT is barred by the Statute
of Frauds.
SEVENTH AFFIRMATIVE DEFENSE
As a seventh separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS allege that that, at all times and places mentioned in
the COMPLAINT herein, PLAINTIFF failed to perform certain conditions precedent to the duty
obligations or performance, if any, of DEFENDANTS. These conditions precedent were imposed
upon PLAINTIFF by contract. The non-performance of said conditions excused
D532CSE6.doc -2-
ANSWER TO COMPLAINT28
TINGLEY Law Group
ATTORNEYS AT LAW
DEFENDANTS?’ duty, obligations or performance, if any, under the contract. PLAINTIFF is,
|| therefore, barred from recovery herein.
EIGHTH AFFIRMATIVE DEFENSE
As an eighth separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS allege that the COMPLAINT is barred by the
Doctrine of Impossibility and Impracticability.
NINTH AFFIRMATIVE DEFENSE
As aninth separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS allege that that enforcement of the agreement(s)
alleged in the COMPLAINT would work a forfeiture, and that the alleged agreement(s) should
not, therefore, be enforced in equity.
TENTH AFFIRMATIVE DEFENSE
As a tenth separate and distinct affirmative defense to the COMPLAINT, and not to be
] construed as an admission, DEFENDANTS allege that that, at all times and places mentioned
herein, PLAINTIFF failed to mitigate the amount of damages. The damages claimed by
PLAINTIFF could have been mitigated by due diligence on PLAINTIFF’s part or by one acting
under similar circumstances. The failure to mitigate is a bar to recovery under the COMPLAINT.
ELEVENTH AFFIRMATIVE DEFENSE
As an eleventh separate and distinct affirmative defense to the COMPLAINT, and not to
be construed as an admission, DEFENDANTS allege that PLAINTIFF’s claims against
DEFENDANTS are barred by the doctrine of changed circumstances.
TWELFTH AFFIRMATIVE DEFENSE
As a twelfth separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS allege that PLAINTIFF’s claims against
DEFENDANTS are barred because the alleged agreements are, in whole or in part,
unconscionable and unenforceable.
THIRTEENTH AFFIRMATIVE DEFENSE
As a thirteenth separate and distinct affirmative defense to the COMPLAINT, and not to
DS32C5E6.doc -3-
ANSWER TO COMPLAINT28
TINGLeY Law Group
ATTORNEYS AT LAW
be construed as an admission, DEFENDANTS allege that PLAINTIFF’s claims against
DEFENDANTS are based on a mistake of law or fact and are, thus, unenforceable, void and/or
voidable.
FOURTEENTH AFFIRMATIVE DEFENSE
As a fourteenth separate and distinct affirmative defense to the COMPLAINT, and not to
be construed as an admission, DEFENDANTS allege that the contract alleged in the
COMPLAINT is unenforceable because it is contrary to an express provision of law, namely
California Business and Professions Code Section 16600, et seq.
FIFTEENTH AFFIRMATIVE. DEFENSE
As a fifteenth separate and distinct affirmative defense to the COMPLAINT, and not to be
construed as an admission, DEFENDANTS allege that the contract alleged in the COMPLAINT
is unenforceable because it is contrary to the established public policy against restraints from
engaging in lawful professions and the public policy in favor of fair competition.
SIXTEENTH AFFIRMATIVE DEFENSE
As a sixteenth separate and distinct affirmative defense to the COMPLAINT, and not to
be construed as an admission, DEFENDANTS allege that PLAINTIFF’s claims against
DEFENDANTS are barred, in whole or in part, by a novation.
SEVENTEENTH AFFIRMATIVE DEFENSE
As a seventeenth separate and distinct affirmative defense to the COMPLAINT, and not to
be construed as an admission, DEFENDANTS allege that that such civil action is barred by
equity.
EIGHTEENTH AFFIRMATIVE DEFENSE
As an eighteenth separate and distinct affirmative defense to the COMPLAINT, and not to
be construed as an admission, DEFENDANTS allege that the COMPLAINT, and each and every
alleged cause of action therein, is barred, in whole or in part, because of the legal and equitable
doctrine of unjust enrichment.
NINETEENTH AFFIRMATIVE DEFENSE
As anineteenth separate and distinct affirmative defense to the COMPLAINT, and not to
DS532CSE6.doc -4-
ANSWER TO COMPLAINT28
TincLey LAW GRouP
Arroneys AT LAW
be construed as an admission, DEFENDANTS allege that PLAINTIFF is barred by the Doctrine
of Unclean Hands.
TWENTIETH AFFIRMATIVE DEFENSE
As a twentieth separate and distinct affirmative defense to the COMPLAINT, and not to
be construed as an admission, DEFENDANTS allege that PLAINTIFF has waived any and all
claims and is barred and estopped from alleging the matters set forth in the COMPLAINT.
TWENTY-FIRST AFFIRMATIVE DEFENSE
As a twenty-first separate and distinct affirmative defense to the COMPLAINT, and not to
be construed as an admission, DEFENDANTS allege that PLAINTIFF is barred by the Doctrine
of Estoppel. PLAINTIFF led DEFENDANTS to reasonably infer that it would not enforce any
rights it allegedly has against DEFENDANTS, DEFENDANTS relied on PLAINTIFF’s actions
giving rise to such a reasonable inference, and DEFENDANTS will be materially prejudiced if
PLAINTIFF is allowed to proceed with its claims.
TWENTY-SECOND AFFIRMATIVE DEFENSE
As a twenty-second separate and distinct affirmative defense to the COMPLAINT, and
not to be construed as an admission, DEFENDANTS allege that the causes of action set forth in
the Complaint are, and each of them is, barred in whole or in part by the privilege of fair
competition.
TWENTY-THIRD AFFIRMATIVE DEFENSE
As a twenty-third separate and distinct affirmative defense to the COMPLAINT, and not
to be construed as an admission, DEFENDANTS allege that each of the causes of action set forth
in the COMPLAINT is barred by the applicable statute of limitations, including, but not limited
to, California Code of Civil Procedure sections 337, 331.2, 338, 339 and 339.5.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Asa twenty-fourth separate and distinct affirmative defense to the COMPLAINT, and not
to be construed as an admission, DEFENDANTS allege that each of the causes of action set forth
in the COMPLAINT is barred by the doctrine of laches.
H/T
D532C5E6.doc -5-
ANSWER TO COMPLAINT28
TINGLEY Law GRouP
ATTORNEYS AT Law
TWENTY-FIFTH AFFIRMATIVE DEFENSE
As a twenty-fifth separate and distinct affirmative defense to the COMPLAINT, and not
to be construed as an admission, DEFENDANTS allege that each of the causes of action set forth
in the COMPLAINT is barred, in whole or in part, by the doctrine of res judicata and/or collateral
estoppel.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
As a twenty-sixth separate and distinct affirmative defense to the COMPLAINT, and not
to be construed as an admission, DEFENDANTS allege that said DEFENDANTS acted at all
times within the scope of discretion, in good faith, with due care, and pursuant to applicable rules,
regulations and practices reasonably and in good faith belief to be in accordance with the
Constitution and laws of the United States or the State of California, and these DEFENDANTS
are, therefore, not liable.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
As a twenty-seventh separate and distinct affirmative defense to the COMPLAINT, and
not to be construed as an admission, DEFENDANTS allege that DEFENDANTS’ conduct was
not the cause in fact, or the proximate cause, of any of the losses alleged by PLAINTIFF.
WHEREFORE, these DEFENDANTS pray for judgment as follows:
1. That PLAINTIFF takes nothing by way of its COMPLAINT;
2. That PLAINTIFF’s request for injunctive relief be denied;
3. For reasonable attorneys’ fees and costs of suit incurred herein; and
4, For such other and further relief as the Court deems proper, including the relief
requested in the COMPLAINT.
Dated: December 30, 2013 TINGLEY LAW GROUP, PC
KEVIN W. ISAACSON
Attorneys for Defendants
D532CSE6.doc -6-
ANSWER TO COMPLAINTs
xa a
27
28
TINGLEY Law GrouP
ATTORNEYS AT LAW
CASE NAME: BENTLY BIOFUELS v. FISHER, et al. CASE NO.: CGC-13-535864
PROOF OF SERVICE
Jam a citizen of the United States. My business address is 10 Almaden Boulevard,
Suite 430, San Jose, California 95113. I am employed in the County of Santa Clara where this
service occurs. ] am over the age of 18 years, and not a party to the within cause. I am readily
familiar with my employer’s normal business practice for collection and processing of
correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence
is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary
course of business.
On the date set forth below, following ordinary business practice, I served a true copy of
the foregoing document(s) described as:
ANSWER TO COMPLAINT
(BY FAX) by transmitting via facsimile the document(s) listed above to the fax
number(s) set forth below, or as stated on the attached service list, on this date
before 5:00 p.m.
(BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be
placed in the United States mail at San Jose, California.
(BY PERSONAL SERVICE) I caused such document(s) to be delivered by hand
this date to the office of the addressee(s).
(BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an
overnight delivery carrier with delivery fees provided for, addressed to the
person(s) on whom it is to be served.
(BY EMAIL/ELECTRONIC DELIVERY) I caused such document(s) to be
transmitted by electronic mail transmission to the appropriate electronic mail
address(es) set forth below. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
unsuccessful.
OoO8e8® oO
oO
Ronald J. Holland
Babak G. Yousefzadeh
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Four Embarcadero Center, 17" Floor
San Francisco, California 94111-4109
[Attorneys for Plaintiff]
Telephone: (415) 434-9100
Facsimile: (415) 434-3947
(State) | declare under penalty of perjury under the laws of the State of California
that the above is true and correct.
Executed on December 30, 2013, at San Jose, California.
Sut M. A shay CCLS
96DFSBB2.doc
PROOF OF SERVICE
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Dec-30-2013 2:40 pm Case Number: CGC-13-535864 Filing Date: Dec-30-2013 2:39 Filed by: KEITH TOM Juke Box: 001 Image: 04325030 ANSWER L BENTLY BIOFUELS COMPANY LLC DBA BENTLY BIOFUELS VS. K. DAVID FISHER et al 001004325030 Instructions: Please place this sheet on top of the document to be scanned.28 TINGLEY Law Group ASTORWEYS AT LAW CURTIS R. TINGLEY (SBN 112322) KEVIN P. O'BRIEN (SBN 215148) KEVIN W. ISAACSON (SBN 281067) TINGLEY LAW GROUP, PC 10 Almaden Boulevard, Suite 430 San Jose, California 95113 Telephone: (408) 283-7000 Facsimile: (408) 283-7010 Attorneys for Defendants K. DAVID FISHER; 3D OIL & GREASE LLC San Francines Cavinn Sune uel 30 2013 CLERK\OF, THE 0 xe PM SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO BENTLY BIOFUELS COMPANY LLC dba BENTLY BIOFUELS COLLECTION SERVICES, LLC, Plaintiff, v. K. DAVID FISHER; 3D OIL & GREASE LLC, and DOES 1-25, inclusive, Defendants. CASE NO. CGC-13-535864 ANSWER TO COMPLAINT Complaint Filed: December 3, 2013 BY FAX Defendants, K. DAVID FISHER and 3D OIL & GREASE LLC (hereinafter collectively “DEFENDANTS”) deny the allegations of the unverified Complaint (hereinafter “COMPLAINT”) of Plaintiff, BENTLY BIOFUELS COMPANY LLC dba BENTLY BIOFUELS COLLECTION SERVICES, LLC (hereinafter “PLAINTIFF”). DEFENDANTS assert the following affirmative defenses to the COMPLAINT and each cause of action contained therein: FIRST AFFIRMATIVE DEFENSE As a first separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that the COMPLAINT fails to state facts sufficient to constitute a cause of action against DEFENDANTS. M1 DS532CS5E6.doc ANSWER TO COMPLAINT28 TINGLEY Law GRouP Arronners AT LAW SECOND AFFIRMATIVE DEFENSE Asa second separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that, at all times relevant herein, PLAINTIFF, with full knowledge of all of the facts in any way connected with, or relating to, the matters alleged against DEFENDANTS, duly ratified, acquiesced in and consented in all respects the conduct and actions of DEFENDANTS. THIRD AFFIRMATIVE DEFENSE As a third separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that PLAINTIFF’s claims, and each of them, fail for lack of adequate and lawful consideration. FOURTH AFFIRMATIVE DEFENSE As a fourth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that the COMPLAINT, and each and every alleged cause of action therein, is barred by way of an account stated. FIFTH AFFIRMATIVE DEFENSE Asa fifth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS assert all amounts owed to them by PLAINTIFF as a set-off against any alleged damages to PLAINTIFF by DEFENDANTS pursuant to this action. SIXTH AFFIRMATIVE DEFENSE As a sixth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that the COMPLAINT is barred by the Statute of Frauds. SEVENTH AFFIRMATIVE DEFENSE As a seventh separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that that, at all times and places mentioned in the COMPLAINT herein, PLAINTIFF failed to perform certain conditions precedent to the duty obligations or performance, if any, of DEFENDANTS. These conditions precedent were imposed upon PLAINTIFF by contract. The non-performance of said conditions excused D532CSE6.doc -2- ANSWER TO COMPLAINT28 TINGLEY Law Group ATTORNEYS AT LAW DEFENDANTS?’ duty, obligations or performance, if any, under the contract. PLAINTIFF is, || therefore, barred from recovery herein. EIGHTH AFFIRMATIVE DEFENSE As an eighth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that the COMPLAINT is barred by the Doctrine of Impossibility and Impracticability. NINTH AFFIRMATIVE DEFENSE As aninth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that that enforcement of the agreement(s) alleged in the COMPLAINT would work a forfeiture, and that the alleged agreement(s) should not, therefore, be enforced in equity. TENTH AFFIRMATIVE DEFENSE As a tenth separate and distinct affirmative defense to the COMPLAINT, and not to be ] construed as an admission, DEFENDANTS allege that that, at all times and places mentioned herein, PLAINTIFF failed to mitigate the amount of damages. The damages claimed by PLAINTIFF could have been mitigated by due diligence on PLAINTIFF’s part or by one acting under similar circumstances. The failure to mitigate is a bar to recovery under the COMPLAINT. ELEVENTH AFFIRMATIVE DEFENSE As an eleventh separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that PLAINTIFF’s claims against DEFENDANTS are barred by the doctrine of changed circumstances. TWELFTH AFFIRMATIVE DEFENSE As a twelfth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that PLAINTIFF’s claims against DEFENDANTS are barred because the alleged agreements are, in whole or in part, unconscionable and unenforceable. THIRTEENTH AFFIRMATIVE DEFENSE As a thirteenth separate and distinct affirmative defense to the COMPLAINT, and not to DS32C5E6.doc -3- ANSWER TO COMPLAINT28 TINGLeY Law Group ATTORNEYS AT LAW be construed as an admission, DEFENDANTS allege that PLAINTIFF’s claims against DEFENDANTS are based on a mistake of law or fact and are, thus, unenforceable, void and/or voidable. FOURTEENTH AFFIRMATIVE DEFENSE As a fourteenth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that the contract alleged in the COMPLAINT is unenforceable because it is contrary to an express provision of law, namely California Business and Professions Code Section 16600, et seq. FIFTEENTH AFFIRMATIVE. DEFENSE As a fifteenth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that the contract alleged in the COMPLAINT is unenforceable because it is contrary to the established public policy against restraints from engaging in lawful professions and the public policy in favor of fair competition. SIXTEENTH AFFIRMATIVE DEFENSE As a sixteenth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that PLAINTIFF’s claims against DEFENDANTS are barred, in whole or in part, by a novation. SEVENTEENTH AFFIRMATIVE DEFENSE As a seventeenth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that that such civil action is barred by equity. EIGHTEENTH AFFIRMATIVE DEFENSE As an eighteenth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that the COMPLAINT, and each and every alleged cause of action therein, is barred, in whole or in part, because of the legal and equitable doctrine of unjust enrichment. NINETEENTH AFFIRMATIVE DEFENSE As anineteenth separate and distinct affirmative defense to the COMPLAINT, and not to DS532CSE6.doc -4- ANSWER TO COMPLAINT28 TincLey LAW GRouP Arroneys AT LAW be construed as an admission, DEFENDANTS allege that PLAINTIFF is barred by the Doctrine of Unclean Hands. TWENTIETH AFFIRMATIVE DEFENSE As a twentieth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that PLAINTIFF has waived any and all claims and is barred and estopped from alleging the matters set forth in the COMPLAINT. TWENTY-FIRST AFFIRMATIVE DEFENSE As a twenty-first separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that PLAINTIFF is barred by the Doctrine of Estoppel. PLAINTIFF led DEFENDANTS to reasonably infer that it would not enforce any rights it allegedly has against DEFENDANTS, DEFENDANTS relied on PLAINTIFF’s actions giving rise to such a reasonable inference, and DEFENDANTS will be materially prejudiced if PLAINTIFF is allowed to proceed with its claims. TWENTY-SECOND AFFIRMATIVE DEFENSE As a twenty-second separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that the causes of action set forth in the Complaint are, and each of them is, barred in whole or in part by the privilege of fair competition. TWENTY-THIRD AFFIRMATIVE DEFENSE As a twenty-third separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that each of the causes of action set forth in the COMPLAINT is barred by the applicable statute of limitations, including, but not limited to, California Code of Civil Procedure sections 337, 331.2, 338, 339 and 339.5. TWENTY-FOURTH AFFIRMATIVE DEFENSE Asa twenty-fourth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that each of the causes of action set forth in the COMPLAINT is barred by the doctrine of laches. H/T D532C5E6.doc -5- ANSWER TO COMPLAINT28 TINGLEY Law GRouP ATTORNEYS AT Law TWENTY-FIFTH AFFIRMATIVE DEFENSE As a twenty-fifth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that each of the causes of action set forth in the COMPLAINT is barred, in whole or in part, by the doctrine of res judicata and/or collateral estoppel. TWENTY-SIXTH AFFIRMATIVE DEFENSE As a twenty-sixth separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that said DEFENDANTS acted at all times within the scope of discretion, in good faith, with due care, and pursuant to applicable rules, regulations and practices reasonably and in good faith belief to be in accordance with the Constitution and laws of the United States or the State of California, and these DEFENDANTS are, therefore, not liable. TWENTY-SEVENTH AFFIRMATIVE DEFENSE As a twenty-seventh separate and distinct affirmative defense to the COMPLAINT, and not to be construed as an admission, DEFENDANTS allege that DEFENDANTS’ conduct was not the cause in fact, or the proximate cause, of any of the losses alleged by PLAINTIFF. WHEREFORE, these DEFENDANTS pray for judgment as follows: 1. That PLAINTIFF takes nothing by way of its COMPLAINT; 2. That PLAINTIFF’s request for injunctive relief be denied; 3. For reasonable attorneys’ fees and costs of suit incurred herein; and 4, For such other and further relief as the Court deems proper, including the relief requested in the COMPLAINT. Dated: December 30, 2013 TINGLEY LAW GROUP, PC KEVIN W. ISAACSON Attorneys for Defendants D532CSE6.doc -6- ANSWER TO COMPLAINTs xa a 27 28 TINGLEY Law GrouP ATTORNEYS AT LAW CASE NAME: BENTLY BIOFUELS v. FISHER, et al. CASE NO.: CGC-13-535864 PROOF OF SERVICE Jam a citizen of the United States. My business address is 10 Almaden Boulevard, Suite 430, San Jose, California 95113. I am employed in the County of Santa Clara where this service occurs. ] am over the age of 18 years, and not a party to the within cause. I am readily familiar with my employer’s normal business practice for collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course of business. On the date set forth below, following ordinary business practice, I served a true copy of the foregoing document(s) described as: ANSWER TO COMPLAINT (BY FAX) by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below, or as stated on the attached service list, on this date before 5:00 p.m. (BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail at San Jose, California. (BY PERSONAL SERVICE) I caused such document(s) to be delivered by hand this date to the office of the addressee(s). (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an overnight delivery carrier with delivery fees provided for, addressed to the person(s) on whom it is to be served. (BY EMAIL/ELECTRONIC DELIVERY) I caused such document(s) to be transmitted by electronic mail transmission to the appropriate electronic mail address(es) set forth below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. OoO8e8® oO oO Ronald J. Holland Babak G. Yousefzadeh SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Four Embarcadero Center, 17" Floor San Francisco, California 94111-4109 [Attorneys for Plaintiff] Telephone: (415) 434-9100 Facsimile: (415) 434-3947 (State) | declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on December 30, 2013, at San Jose, California. Sut M. A shay CCLS 96DFSBB2.doc PROOF OF SERVICE